The Toledo v. Elliott

• Decision Date: 31 January 1875
• Parties: THE TOLEDO, WABASH AND WESTERN RAILWAY CO.v.HENRY F. ELLIOTT et al.
• Court: Illinois Supreme Court

76 Ill. 67

1875 WL 8150 (Ill.)

THE TOLEDO, WABASH AND WESTERN RAILWAY CO.

v.HENRY F. ELLIOTT et al.

Supreme Court of Illinois.

January Term, 1875.

APPEAL from the Circuit Court of Logan county; the Hon. LYMAN LACEY, Judge, presiding.

This was an action of assumpsit, by Henry F. Elliott, James Congdon and Eugene Burnell, partners, doing business under the name and style of Elliott, Congdon & Co., against the Toledo, Wabash and Western Railway Company, to recover back a rebate of five and a half cents per hundred pounds on a lot of corn shipped to Boston on defendant's road, under a special agreement to that effect. The facts of the case are stated in the opinion.

Mr. G. B. BURNETT, for the appellant.

Messrs. BEASON & BLINN, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

In February, 1872, plaintiffs had on hand a large amount of corn, which they were desirous of selling. They effected a sale in the Eastern market, at a certain price, upon the basis of a tariff of freights, to “Boston and Boston points,” at the rate of 80 1/2 cents per one hundred pounds, which the proof shows was then the regular rate or charge. By the terms of the contract with the shippers, the consignees were to pay the charges on the corn as a part of the contract price, the rate being made known to them, and was as previously agreed upon with defendant, viz: 80 1/2 cents per one hundred pounds.

Plaintiffs testified they made the sale upon a small margin, expecting to get a rebate or drawback on the rates, by which they would have realized a profit. Under a special contract, the railroad carried a large amount of corn for plaintiffs. The controversy in the case is as to the terms on which the company was to freight the corn. Plaintiffs claim it was to be carried at 80 1/2 cents per one hundred pounds, and the company, by special agreement, was to allow them a drawback or rebate on the charges, to the amount of 5 1/2 cents. On the other hand, the company contend the contract was to carry the corn at a reduced rate, viz: 75 cents per one hundred pounds.

As to the terms of the shipping contract, the evidence is quite conflicting; but there are some facts that appear to strengthen plaintiffs' theory of the case. They had sold the corn at a certain price, on the definite agreement the consignees would pay the usual charges, viz: 80 1/2 cents. It was obviously no interest to them to negotiate for a reduction of rates, if they were to receive no benefit therefrom. A significant fact in the case is, the corn was, in fact, billed at 80 1/2 cents at Lincoln, but the rates were changed at Toledo without the knowledge or consent of the shippers. Some of the cars so billed went through without change of rates, upon which the consignees paid the charges at the rates agreed upon in advance. As to these cars, the company allowed plaintiffs a drawback of 5 1/2 cents, which has been paid. Upon the whole evidence the court below, before whom the cause was tried without the intervention of a jury, found the company contracted to allow plaintiffs a drawback of 5 1/2 cents; and we are not prepared to say it found incorrectly. Were it a question of first impression with u...